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Case Laws
Showing 421 to 440 of 915 Records
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2010 (7) TMI 811 - COMPANY LAW BOARD CHENNAI
Interim order by Tribunal. ... ... ... ... ..... 5 lakhs to the second respondent towards meeting the cost of getting the plan sanctioned. The local planning authorities have called upon the applicant to pay infrastructure charges of Rs. 2,99,87,000 and a further payment of Rs. 25,59,300 towards development fees. In the facts and circumstances, it is just and proper for this Bench to permit the applicant to proceed with the JDA. The best interest of the company warrants such a direction. 7. In the result the application stands allowed subject to the following directions. As undertaken in the affidavit of respondent No. 3, respondents Nos. 3 to 6 will ensure that (i) all the transactions are routed through a single bank account, (ii) will furnish to the first respondent (petitioner in the company petition) periodical statement of sales made, money realised and expended, etc., and (iii) will keep factory, land, building and plant and machinery unencumbered. Post the company petition for hearing August 25, 2010, at 10.30 a.m.
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2010 (7) TMI 810 - HIGH COURT OF CALCUTTA
Winding up petition - Held that:- As bona fide dispute has been raised in this matter against the claim of the petitioner and it is not the case where the claim is admitted. I do not think it would be equitable to direct winding up of the company in the facts of the present case. The petition shall stand dismissed. However, it shall be open to the petitioner to apply before the appropriate legal forum if they are so advised for reagitating their claim. If any action is instituted, then the petitioner shall be entitled to take defence contemplated in section 14 of the Limitation Act, 1963, having regard to the fact that this matter was pending before this court since the year 2004
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2010 (7) TMI 809 - COMPANY LAW BOARD, CHENNAI BENCH
Meetings and proceedings - Circulation of member's resolution ... ... ... ... ..... t, the averments and reliefs sought for in the company petition are indirectly sought to be circulated for publicity among the shareholders. I see no bona fides in the contention of respondent Nos. 1 and 2 that what is conveyed as per the statement is only some information which is true. For the reasons stated above, this Bench is satisfied that respondent No. 1 and respondent No. 2 are abusing the provision under section 188 of the Companies Act to secure unnecessary publicity for a defamatory matter. Respondent Nos. 1 and 2 still have an opportunity to present their views in the proposed annual general meeting. This application filed by the company is maintainable since the disputed statement has been filed by the petitioners themselves. 9. In the result this application is allowed and the applicant-company is directed not to circulate the impugned statement annexed to the communication dated 6-7-2010, submitted by respondent No. 1 and respondent No. 2, to the shareholders.
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2010 (7) TMI 808 - ITAT, AHMEDABAD
Disallowing Depreciation - On Plant and Machinery. ... ... ... ... ..... eciation table reads as under - ldquo Machinery and plant, used in weaving processing and garment sector of Textile Industry, which is purchased under TUFS hellip .. from this it cannot be read that weaving and processing is provided by cloth so as to infer that it is only weaving and processing of cloth whose machineries are entitled for higher depreciation. The words used are weaving, processing and garments sector of textile industry. rdquo 9. In other words, weaving, processing and garments sector are part of textile industries which is a larger group. In this textile industry, the weaving processing and garment sector are covered in respect of whose machineries, the high rate of depreciation is provided. Thus the word processing would include texturising and twisting of yarn which is finally used in textile industry. Thus respectfully following the above decision of the Tribunal we allow the claim of the assessee. 10. As a result, appeal filed by the assessee is allowed.
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2010 (7) TMI 807 - CESTAT, BANGALORE
Search and Seizure - Determination of transaction value - Normal value versus transaction value Held that:- For all the clearances after 1-7-2000, the value has to be determined based on each transaction. Therefore, the differential duty should be confined only to the evidences available on record - period prior to 1-7-2000, the Commissioner has to decide the normal price for each variety of goods and he can adopt the same for all the clearances. It does not mean that the invoice value has to be accepted. The normal price has to be determined based on the evidence available - matter remanded to the Commissioner
Undervaluation - Charge of undervaluation based only on the principle of preponderance of probability - extrapolation Held that:- In the cases cited extrapolation of a finding in respect of an offending transaction was applied to other transactions in view of the concrete evidence in the case examined - undervaluation of excisable goods is as serious a charge as clandestine removal - Differential duty can be demanded only where undervaluation is established - There could be cases where the facts of one case of undervaluation and the pattern involved are such that extrapolation is safe and justified - facts highlighted by the Commissioner do not justify such a course of action. As undervaluation cannot be ruled out and is likely to have taken place as is apparent from the price lists, chits and IOM seized - case remanded to the Commissioner for fresh adjudication
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2010 (7) TMI 806 - ITAT CHANDIGARH
Capital gain sale of agriculture land - assessee had claimed deduction under s. 54F of the IT Act - assessee had claimed to have purchased the residential plot construction was in progress and was not complete and in view thereof, the benefit of exemption claimed under s. 54F of the Act was rejected by the authorities below Held that:- Where the assessee had invested the consideration received on sale of original asset in the purchase of the plot of land and started construction though not completed, the assessee had complied with the provisions of s. 54F of the Act and hence was entitled to the benefit of exemption claimed - AO directed to allow the claim of the assessee in respect of the benefit of exemption claimed under s. 54F of the Act in favor of assessee
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2010 (7) TMI 805 - GOVERNMENT OF INDIA, MINISTRY OF FINANCE
Drawback claim - supplementary Drawback Claims under Rule 15 of Drawback Rules - claims rejected as time-barred Held that:- During such time-periods nobody stops his business activities and one has to make alternative arrangements for smooth functioning of their official work. Govt. does not find this plea of personal/ busy schedule of the respondent as a valid reason so as to bind the Customs Authorities to act as per the convenience of individual exporter - revision application of revenue thus succeeds
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2010 (7) TMI 804 - CESTAT, NEW DELHI
Penalty - Cenvat Credit - contravention of the provisions of Rule 9(2) - Held that:- Appellants have taken cenvat credit on the strength of invoices against which the goods received in the factory of the appellants physically - as per Rule 9(2) ibid provides that if concerned officer is satisfied that the goods have been received in the factory then for the contravention of non mention of vehicle number is not to be held as contravention as per rule - Penalty set aside
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2010 (7) TMI 803 - ITAT AHMEDABAD
TDS u/s 195 - Disallowance u/s 40A(a)(i)(A) - assessee has not deducted withholding tax on fees for technical services as per the provisions of DTAA - as submitted appellant was not the beneficial owner of Fees for Technical services and therefore the provision of DTAA does not apply - whether the assessee can be asked to do impossible Act, i.e., to deduct tax for the past period? -
HELD THAT:- We find that by amendment in the Finance Act, 2007, the Legislature inserted the explanation retrospectively with retrospective effect from 1-6-1976 to section 9(2) of the Act, whereas the assessment year involved is 2004-05 relevant to previous year 2003-04 and it is impossible for the assessee to deduct tax in the financial year 1-4-2003 to 31-3-2004, when the obligation to deduct TDS was not on the assessee during that period.
The provision of section 9 provides for situations where income is deemed to accrue or arise in India to a non-resident. We find that the Legislature vide Finance Act, 1976, a source rule was provided in section 9 through insertion of clauses (v), (vi) and (vii ) in sub-section (1) for income by way of interest, royalty or fees for technical services respectively and the intention of introducing the source rule was to bring to tax interest, royalty and fees for technical services, by creating a legal fiction in section 9, even in cases where services are provided outside India as long as they are utilized in India but the Hon’ble Supreme Court in the case of Ishikawajma-Harima Heavy Industries Ltd. [2007 (1) TMI 91 - SUPREME COURT] held that despite the deeming fiction in section 9, for any such income to be taxable in India, there must be sufficient territorial nexus between such income and the territory of India.
In view of the above facts and legal position, whether the assessee can be asked to do impossible Act, i.e., to deduct tax for the past period. With the insertion of the explanation retrospectively by the Finance Act, 2007 with retrospective effect from 1-6-1976 to section 9(2) of the Act, whereas the assessment year involved is 2004-05 relevant to previous year 2003-04, it is impossible for the assessee to deduct tax in the financial year 1-4-2003 to 31-3-2004, when the obligation to deduct TDS was not on the assessee during that period. The argument canvassed by the Ld. counsel on the basis of a legal Maxim lex non cogit ad impossibilia, meaning thereby that the law cannot possibly compel a person to do something which is impossible to perform. This Maxim is accepted by different courts of this country, including the Hon’ble Supreme Court in the case of Krishnaswamy S. Pd. v. Union of India [2006 (2) TMI 75 - SUPREME COURT].
At the relevant point of time it was impossible on the part of the assessee to deduct tax on the income of non-resident. Admittedly, up to the insertion of explanation vide Finance Act, 2007, the assessee was under bona fide belief not to deduct tax and accordingly he acted as per law. Accordingly we allow the appeal of assessee. In the result, assessee’s appeal is allowed.
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2010 (7) TMI 802 - ITAT DELHI
Capital gains - Computation in case of depreciable assets ... ... ... ... ..... onsideration received or accruing on transfer of the block of assets, while computing short-term capital gains. Admittedly, the assessee has purchased assets with same rate of depreciation in other units of the value of Rs. 2,19,59,294. When this amount is deducted under the aforesaid clause (iii), the computation of short-term capital gains results into a nil figure. The assessee has otherwise deducted the sale proceeds from the block of assets of other units for the purpose of computing depreciation for succeeding year. Therefore, we are of the view that the capital gains on transfer of entire machinery and plant of the paper division amount to nil and, thus, are not liable to be taxed under section 50. 6.5 Before parting, we may add that this interpretation is in accordance with the statutory language and, thus, it cannot be said that it defeats the purpose of the provision, which in any case was not explained to us by the ld. DR. 7. In the result, the appeal is dismissed.
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2010 (7) TMI 801 - ITAT DELHI
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Disallowance u/s 40(a)(ia) - HELD THAT:- The due date of filing the return in the present case is 30-9-2007. The assessee in the present case has deducted tax in the month of March, 2007 and it has paid the said TDS before the due date of filing the return.; Therefore, the disallowance cannot be made u/s 40(a)( ia) as there is no default on the part of the assessee of non-deduction or non-payment of TDS in accordance with the said provision. The disallowance has wrongly been upheld by the CIT(A) and the same deserves be deleted. Accordingly the disallowance is deleted.
In the result, the appeal filed by the assessee is allowed.
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2010 (7) TMI 800 - ITAT KOLKATA
Disallowance u/s 40(a)( ia) - contract for transportation of goods -TDS u/s 194C(3) - We are of the considered view that the learned CIT(A) ought to have considered the appeal’s adjudication on the facts as enumerated by the AO. The very requesting forms were incorporated by the AO, therefore’, clinches the issue in favour of the assessee, the assessee was riot to be assessed as a sub-contractor. The truck owners in their’ relevant certification on Form No. 15-I declared for non-deduction of tax at source for not owning more than two heavy goods carriage trucks during the financial year. Fortified with these forms, the assessee was able to furnish Form No. 15J under the third proviso to clause (i) of sub-section (3) of section 194C for the asst. yr. 2006-07. As per certificate from the office of CIT(TDS), Kolkata, dated 23-4-2009, acknowledging submission of Form 15J to his office on 29-6-2006 vide receipt No. 2139, this procedure would have settled the issue in his favour. Therefore, the issue involved being legal is considered relying on the Apex Court’s decision in the case of National Thermal Power Co. Ltd. v. CIT [1996 (12) TMI 7 - SUPREME COURT]
In the result, appeal of the assessee is allowed on the additional ground and the sum of Rs. 61,63,280 disallowed u/s 40(a)( ia) is directed to be deleted.
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2010 (7) TMI 799 - ITAT DELHI
Penalty - For concealment of income ... ... ... ... ..... ing Officer to record specifically his satisfaction in the assessment order initiating penalty proceedings under section 271(1)(c) of the Act, but such satisfaction is only required to be discernible from the assessment order reading as a whole. In the present case, this condition is satisfied, as observed above. 55. In the light of the discussions made above, we, therefore, hold that the order of penalty under section 271(1)(c) passed by the Assessing Officer is valid and justified in so far as the following items of additions or disallowances are concerned as discussed and held above (i)Rs. 11,668 addition on account of purchases (ii)Rs. 29,25,207 on account of set-off of long-term capital loss against business income (iii)Rs. 9,26,060 on account of liability no longer required (iv)Rs. 48,000 on account of rent receivable. 56. In the result, the appeal filed by the Revenue is partly allowed as indicated above. 57. This decision was pronounced in the open court on 23-7-2010.
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2010 (7) TMI 798 - ITAT BANGALORE
Assessment - Additions to income ... ... ... ... ..... 05. 11. Even though we have appreciated the arguments of the learned chartered accountant regarding recognition of income under uncertain circumstances, we find that the exact bill-wise reconciliation on account of difference in personal accounts were not completely administered by the assessee at the time of assessment. In such circumstances, the Commissioner of Income-tax (Appeals) is justified in accepting the alternate contention advanced before him that if at all there could be a case of turnover suppression, the profit element alone could be taxed. In the given facts and circumstances of the case, the Commissioner of Income-tax (Appeals) has rightly estimated the profit element and limited the quantum addition. We do not find much force in the arguments advanced by the Revenue. 12. In result, the appeal filed by the revenue as well as the cross-objection filed by the assessee are dismissed. 13. The order pronounced on Wednesday, the 28th day of July, 2010, at Bangalore.
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2010 (7) TMI 797 - ITAT DELHI
Business expenditure ... ... ... ... ..... essing Officer has levied penalty under section 271(1)(c) on two items i.e., on addition of Rs. 93,91,706 which has been added by treating the above expenses as capital in nature and the expenses of Rs. 29,14,242. These expenses were claimed by the assessee towards market research expenses. Assessing Officer has treated these expenses as capital in nature. On appeal learned CIT(A) confirmed the penalty qua addition of Rs. 93,91,706 and deleted the penalty qua disallowance of marketing research expenses. While disposing of the quantum appeal of the assessee we have deleted both these additions. Therefore, no penalty is sustainable, in view of our order in the quantum appeal. Consequently the appeal of the assessee is allowed and that of revenue is dismissed. We summarize the result as under 1.ITA No. 2422/Del/2007 is allowed for statistical purposes. 2.ITA No. 2168/Del/2009, the appeal of the assessee is allowed. 3.ITA No. 2735/Del/2009, the appeal of the revenue is dismissed.
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2010 (7) TMI 796 - ITAT AHMEDABAD
Voluntary retirement payments - claim u/s 10(10C) - The facts of the case are that assessee is a Deputy Manager in SBI and has taken VRS under exit option scheme introduced by the Bank of India. The assessee received salary and pension (including ex gratia). On examination of Form No. 16 the AO noticed that assessee received ex gratia of Rs. 3,07,236 on VRS. He claimed exemption u/s10(10C). The AO disallowed the claim by following Circular No. Chief CIT, Baroda letter BRD/Chief CIT/Tech/MICS/10(10C)/2009-10.
HELD THAT:- In the case of SAIL DSP VR Employees Association 1998 v. UOI [2003 (2) TMI 46 - CALCUTTA HIGH COURT] held as under Sums paid on voluntary retirement to the extent of rupees five lakhs are exempted from being charged to tax by reason of section 10(10C). Even if the payment is stretched over a period of years, the same would not become chargeable to tax in any subsequent assessment year. They have also held that provision of section 10(10C) should be interpreted in a manner beneficial to the optee for voluntary retirement. Similarly, In the case of CIT v. P. Surendra Prabhu[2005 (9) TMI 67 - KARNATAKA HIGH COURT] held that the assessee, employee of the respondent bank was not only entitled to the benefit of exemption u/s 10(10C) to the extent prescribed in the provision itself but for any amount over and above the prescribed limit; under the aforesaid provision, the assessee was also entitled to relief u/s 89(1) r/w rule 21A.
Respectfully following the above decision of the Tribunal, we allow the claim of assessee. In the result, appeal of the assessee is allowed.
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2010 (7) TMI 795 - ITAT MUMBAI
Free trade zone, Bad debts, Transfer pricing - Computation of arms length price ... ... ... ... ..... xceeding five percent of such arithmetical mean. As is clearly evident from the aforesaid proviso, if the difference between the price charged by the assessee and arm rsquo s length price determined by the most appropriate method is less than 5 per cent. the assessee has an option to take the price charged by him as arm rsquo s length price and no adjustment therefore is required to such price under section 92C(2). In the present case, it was found by the ld. CIT(A) on verification of the working prepared and furnished by the assessee that such difference is less than 5 per cent and this being an undisputed position, we find no infirmity in the order of the ld. CIT(A) deleting the addition made by the Assessing Officer on the basis of TPO rsquo s report by relying on the proviso to section 92C(2). The impugned order of the ld. CIT(A) on this issue is therefore upheld dismissing ground No. 3 and 4 of Revenue rsquo s appeal. 9. In the result, appeal of the Revenue is dismissed.
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2010 (7) TMI 794 - ITAT HYDERABAD
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Revision u/s 263 - Whether the CIT was justified in invoking the provisions of section 263 and directing the AO to re-compute the book profit u/s 115JB by considering the P&L account prepared in accordance with Parts II and III of Schedule VI to the Companies Act, 1956 on account of gains arising out of the transfer of assets to wholly-owned subsidiary as part of book profit without considering the provisions of section 47(iv)? - facts of the case are that, the assessee is a company filed return of income for the AY 2004-05 declaring a loss and assessment was completed u/s 143(3) determining the total loss after making an addition towards deferred revenue expenditure.
HELD THAT:- Even declaration of dividend is not a must for application of section 115JB. The purpose of this section is to tax companies which were making profits but not paying taxes due to so many exemptions and deductions. The reference to the declaration of dividend in the context of section 115JB by the Finance Minister or by the Circulars are merely explanations to the kind of malaise that the section sought to address. For invoking this section, there is no pre-requisite condition that the company should have declared dividend to the shareholders.
Long-term capital gain is to be included in the net profit prepared under the Companies Act and the same is not deductible from the net profit for the purpose of computing book profit u/s 115JB. We further hold that merely because the long-term capital gain is exempt u/s 47(iv) under the normal provision of the Act, it is not correct to say that it is also to be reduced from the net profit for the purpose of computing book profit u/s 115JB when the Explanation to section 115JB does not provide for any deduction in terms of section 47(iv). In other words, we hold that section 47(iv) of the Act has no application in the computation of book profit under section 115JB of the Act.
In fact only because the Government felt that companies availing of various deductions permitted under the Income-tax Act showed a low income for the purpose of income-tax but was able to show healthy profits as per books on the basis of which dividends were distributed and to tax these types of companies that tax on book profits were introduced. By again importing deductions allowed under the normal provisions of income-tax into computation of book profits, we will be negating the very purpose for which these sections were introduced. To sum up, we hold that in the absence of any provision for exclusion of capital gains exempted in the computation of book profit under the provisions contained in Explanation to section 115JB, the assessee is not entitled to the exclusion thereof as claimed.
In the result, we answer the question as against the assessee.
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2010 (7) TMI 793 - ITAT MUMBAI
Double taxation relief - Where agreement exists ... ... ... ... ..... arding PE and ld. CIT(A) has considered the issue with reference to Article 5(6). Technically, ld. CIT(A) has decided the issue relating to PE, and, therefore, same can be considered with reference to the ground taken by the department. However, in order to have a complete holistic view, it is necessary that all the relevant Articles dealing with this issue are considered by the lower authorities before arriving at any conclusion. We, therefore, following the reasoning given in the case of Thoresen Chartering Singapore (Pte.) Ltd. (supra), restore the matter to the file of the Assessing Officer to decide the matter afresh after giving adequate opportunity to the assessee. 13. As regards the cross objection filed by the assessee, since we have held that Article 8(A) is not applicable, therefore, the cross objection stands dismissed. 14. In the result, appeal filed by the revenue is allowed for statistical purposes and that of cross objection filed by the assessee is dismissed.
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2010 (7) TMI 792 - ITAT CHENNAI
Double Taxation Relief - Where agreement exists ... ... ... ... ..... e fee for the technical services. In the circumstances, the provisions of section 195 of the Act would not be applicable to the payment made by the assessee to the Austrian enterprise on account of the fee for technical services for the assessment year 2002-03. IN the circumstances, as the provision of section 195 does not apply, the requirement of the assessee to obtain certificate under section 195(2) also does not survive. As the provision of section 195 does not apply, the payment made by the assessee to the Austrian enterprise on account of the fee for technical services would not be hit by the provisions of section 40(a)( i) of the Act and consequently, no disallowance of the expenditure on account of the fee for the technical services paid to the Austrian enterprise can be made in the circumstances, the disallowance of the expenditure as made by the Assessing Officer and confirmed by the ld. CIT(A) stands deleted. 5. In the result the appeal of the assessee is allowed.
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